Fight to the Finish

The Moffat Tunnel Commission went out with a bang last week, engaging in one last act of defiance before being swept into the dustbin of Colorado history. At a New Year's Eve meeting marked by angry exchanges between commissioners and audience members, the elected panel considered a plan to sabotage a group of replacement commissioners recently appointed by Governor Roy Romer. When the "emergency" session ended, the mutiny had been thwarted and the state had lost one of its most belligerent and irreverent governmental entities.

The commission, a five-member elected panel charged with overseeing a pair of railroad and water tunnels built beneath James Peak in 1927, has served little purpose since the bonds issued to pay for the tunnels were paid off in 1982. But because it collected taxes for an extra year, the panel wound up with roughly $1 million in excess cash after the bonds were retired. Upon the election of a group of activist commissioners in 1990, that money became a de facto monkey-wrenching fund for a band of unlikely crusaders convinced that previous commissioners had acted on behalf of the powerful interests that use the tunnels, and not on behalf of the public.

Before they were through, the commissioners, led by Denver Water Department employee Edward J. "Jake" Jakubowski Jr. and 74-year-old violin-playing attorney Walter O. Cass, had sued the Winter Park ski area over the resort's sweetheart lease of commission property, gone to court in an attempt to open up the membership rolls of the secretive Colorado Arlberg Club, and bedeviled the City of Denver, suing it in an attempt to prevent the city from collecting a seven-figure tax rebate ("Still Railing," May 16, 1996). The commission also managed to get on the wrong side of its own tenants: Denver billionaire Philip Anschutz's Southern Pacific Railroad (since acquired by the Union Pacific) and the Denver Water Board, which in 1995 joined forces with the Winter Park Recreational Association to ask state lawmakers to abolish the tunnel board.

The commissioners fended off the attack for a year by spending more than $100,000 of their dwindling cash reserves on high-powered lobbyists. However, the railroad and the others succeeded in driving a stake through the commission's heart last year. And attorneys for the city, the railroad, the water board and the WPRA were on hand to witness the group's last gasp, a stormy session devoted to a farewell attempt at political gear-jamming.

Under the legislation passed last year, Romer was given the authority to appoint a group of commissioners to oversee the transfer of tunnel matters to the state Department of Local Affairs. The current commissioners asked to be reappointed, but Romer bypassed them in favor of former Denver Water Board member and ex-mayoral candidate Monte Pascoe, Denver banker Bruce Rockwell, Wynkoop Brewing Company co-owner John Hickenlooper and Grand County commissioner Paul Ohri.

When Jakubowski learned that he and his colleagues had been snubbed, he responded by attempting to scuttle his own ship. He called the emergency meeting in an attempt to pass a resolution under which the tunnel board would commit suicide, voting itself out of existence and handing over all of its assets to Local Affairs before the Romer panel could be seated.

Jakubowski claims he had the votes to pull off the defiant gesture. But support for the resolution crumbled after loud protests from the city, the state and the railroad, which suddenly found themselves trying to resuscitate the political beast they had tried to destroy. "This is being done so fast and dirty," complained Denver assistant city attorney Patrick A. Wheeler, who told the commissioners they could be held personally liable should a last-minute bailout result in a loss of assets.

Jakubowski pressed forward with the suicide plot even after Jerry Smith, deputy director of the Department of Local Affairs, said his agency had no money budgeted to manage the tunnels. His department simply wasn't ready to take over, Smith pleaded, and didn't even have the capacity to draw on the remaining funds the commission was proposing to turn over to the state treasurer (about $520,000, according to a projection in the most recent financial report). "That's not our problem," said Jakubowski.

Railroad attorney James Gatlin engaged Jakubowski in a testy exchange when the commissioner attempted to call off discussion and vote on the resolution. "The public needs to know what's going on here!" shouted Gatlin. Jakubowski then sarcastically asked Gatlin if he lived within the boundaries of the tunnel district. "No, but I'm a member of the public," Gatlin replied.

The prospect of facing personal liability for their actions cowed the commissioners. "Having been an old lawyer for 46 years, anyone can sue you," said Cass. "That's what I'm concerned about." Western Slope commissioner Ingrid L. Karlstrom, who initially appeared willing to go along with Jakubowski's resolution, also expressed fears about litigation.

The board went into executive session to discuss whether it could be left on the hook financially. And as the audience filed back into the room, Western Slope commissioner George Tolles could be heard telling the other commissioners via speaker phone, "I think we're beating a dead horse to death. We've dragged out enough lawsuits. We have to get on with our lives." Shortly afterward, the commissioners voted down the resolution 3 to 1. A defeated Jakubowski, who cast the only "yes" vote, spent the rest of the meeting alternately staring at the ceiling and trying to contact absent Denver commissioner Dick Rudolph by cellular phone. The day after the meeting, Jakubowski accused the other commissioners of betraying him. "We've got some real candidates for RTD here," he said. "I watched three human beings turn into Larry, Curly and Moe right at the meeting."

The resolution's failure means Romer's commissioners will get a chance to serve, probably beginning with an organizational meeting January 13. And the new commissioners will inherit a few pieces of old business. They'll have to decide what to do about the lawsuit against Denver, which is still pending in Adams County District Court. That legal action, which prompted a countersuit by Denver, is a tug-of-war over roughly $2 million that the commission received from the WPRA to settle its lawsuit against the ski area.

The new commission also will have to determine the fate of the tunnels, which were put up for sale by the outgoing board. Under the legislation, the railroad and the water board have the first right of refusal on any offer, and they're expected to end up each owning a tunnel. If they choose not to buy them, another bidder could conceivably wind up with the properties. But that's considered unlikely, since the tunnels are encumbered by long-term leases to the current tenants. If nobody buys the tunnels by the time the new commission sunsets in February 1998, Smith's agency will manage them.

The departing commissioners, meanwhile, remain unapologetic. Cass says he believes the commission fought the good fight, though he suggests he may be "put on blocks and hung outside Union Station" for the trouble he caused Mayor Wellington Webb. Jakubowski says he's embarrassed by his failure to pass the suicide resolution at the final meeting. But he acknowledges that, compared with some of the commission's past exploits--which included Cass's threat to build a Taco Bell on tunnel land at Winter Park just to irk resort boss Jerry Groswold--the last hurrah wasn't all that strange.

"It's no more bizarre than the last six years, actually," says Jakubowski. "I don't know why I'm surprised."